Opinion
June 28, 1949.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Bergan, JJ.
The only question presented is whether the board had jurisdiction in the matter, viz., whether claimant, injured in the course of his employment by American Export Airlines, Inc. (now American Overseas Airlines, Inc.), as an airplane pilot, was covered for Federal compensation under the Federal Defense Bases Act (U.S. Code, tit. 42, § 1651), because of a contract between his employer and the United States Government, and claimant's employment in its performance. Claimant was accidentally injured in New York by a smallpox vaccination. His employer's office and principal place of business was in New York City where, at La Guardia Airport, it maintained its base for operations and it did not have or maintain one at any other place. Claimant resided and was hired in New York State. He received his orders and reported to his employer's New York base and his employer was covered as to him with compensation insurance as required by the New York statute. Originally hired as a pilot in his employer's business of operating a commercial airline, in the forepart of 1945, he was assigned as a pilot in the service which his employer had agreed to render under its contract with the United States. So far as pertinent, that contract in substance engaged the employer to supply the United States with air transport services as required by its Air Transport Command and this included air transport of personnel and supplies between points within the United States, without the United States, and points within and without the United States. We regard as untenable appellant's first contention that Federal coverage obtained under the Federal act in that claimant's employment was upon "public work" as there defined. (U.S. Code, tit. 42, § 1651, subd. [a], par. [4]; Matter of Losch v. Curtiss-Wright Corp., 275 App. Div. 1; see, also, Matter of Berman v. Hudson American Corp., 271 App. Div. 847, motion for leave to appeal denied 296 N.Y. 1055, and Republic Aviation Corp. v. Lowe, 164, F.2d 18, certiorari denied 333 U.S. 845.) Appellant further contends that Federal coverages obtained under paragraph (1) of subdivision (a) of said section 1651 of the Federal act which extends Federal compensation coverage "in respect to the injury or death of any employee engaged in any employment — (1) at any military, air, or naval base acquired after January 1, 1940, by the United States from any foreign government * * * (2) * * * (3) * * * (4) * * * irrespective of the place where the injury or death occurs". A further subdivision of said section [subd. (c)] provides that if the employer is liable under the aforesaid act such shall be exclusive and in place of all other liability otherwise obtaining under a Workmen's Compensation Law of any State. Thus the question here is whether under the facts claimant was engaged in "any employment" at any of the military, air or naval bases to which he went in the course of his said employment on flights out from and in returning to his employer's New York base. The evidence is that his presence at those bases outside of the United States was transient and incidental to his assignments to pilot duty in New York which took him on flights to those places as a route out from and back to New York. Many cases have shown that the test of the location of one's employment has often been a difficult matter. Here the chapter heading of the Federal act and the caption of said section 1651 expressly prescribe the place of employment as "at any * * * base", etc., outside of the United States. While subject to liberal construction this nevertheless denotes a definite workplace for the performance of the duties of the covered employment, or, at least, that the foreign base is a fixed location for the performance of duty. We think it would be going too far to say that employment at such a base outside of the United States results where an airplane pilot whose base and whose employer's only base of operation is in New York, is directed to fly to, land and stay briefly and transiently at such foreign base on the flight out of his home port and back. Employment at an air base in a practical sense does not include the mere scheduled landing there and early taking off for other bases, as a routine of scheduled itinerary. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.